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NAVY | BCNR | CY2006 | 00605-06
Original file (00605-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
         BJG
 Docket No: 605-06
 26 April 2006
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
          REVIEW OF NAVAL RECORD (RECONSIDERATION)
Ref:     (a) Title 10 U.S.C. 1552

 End:     (1) DD Form 149 dtd 15 Dec 03 w/encl
 (2)      BCNR ltr BJG Docket No: 3342-04 dtd 13 May 04 w/encl
(3)      DD Form 149 dtd 28 Nov 05 w/encls
(4)      HQMC MMER memo dtd 22 Dec 05
(5)      Subject’s ltr dtd 12 Apr 06
(6)      Ex-Cpl R--- e-mail dtd 20 Apr 06
(7)      Memo for record dtd 24 Apr 06
(8)      Subject’s naval record
1.       Pursuant to reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting that his naval record be corrected by removing the fitness report for 25 July to 25 September 2003 (copy at Tab A), setting aside the revocation of his selection by the Calendar Year (CY) 2003 Gunnery Sergeant Selection Board, and promoting him to gunnery sergeant with a date of rank and effective date reflecting a CY 2003 selection. The Board denied this request, docket number 3342-04, on 13 May 2004 (enclosure (2)). By enclosure (3), Petitioner requested reconsideration.

2.       The Board, consisting of Ms. Ballinger and Messrs. Cooper and Schultz, reviewed Petitioner’s allegations of error and injustice on 20 April 2006, and pursuant to its regulations, determined that additional information was needed. On 24 April 2006, the Board completed deliberations and determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.










3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

 a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Enclosure (1) was filed in a timely manner.
c.       The contested fitness report is adverse, stating Petitioner failed to maintain “high standards of military bearing and professionalism when dealing with junior Marines.” It also states he did not hold collateral duty inspections in a fair and consistent manner, and that he was unduly familiar with members of the Marine Corps security detachment. Finally, it states his poor judgment affected his personal credibility. He submitted a rebuttal denying all allegations of misconduct.
d.       By correspondence dated 14 November 2003 (copy at Tab B), Petitioner was advised that his selection by the CY 2003 Gunnery Sergeant Selection Board had been revoked for unspecified “unprofessional conduct and poor judgment” exhibiting failure to maintain the high standards expected of a Marine Corps staff noncommissioned officer.
e.       In enclosure (3), Petitioner’s request for reconsideration, he included an electronic mail (e-mail) statement from former Corporal R---, who had filed a sexual harassment and assault complaint against him. In her statement, she recanted and apologized to him. Petitioner also provided a statement from the reporting senior to the effect the former corporal’s statement supports removing the contested report.
f.       In correspondence attached as enclosure (4), the head of the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB) has commented to the effect that the new evidence Petitioner provided did not warrant reconsideration by the PERB. He noted the adverse report was based not only on the sexual harassment and assault complaint, but also on disparate treatment of Petitioner’s Marines during the audits he conducted (male audited in public, female in the individual’s room).
g.       Enclosure (5) is Petitioner’s rebuttal to enclosure (4). He stated that he was allowed to conduct audits anywhere he wished, and that the adverse report was based on unfounded allegations of sexual harassment and assault.









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h.       Enclosure (6) is another e-mail from former Corporal R---. It was obtained at the direction of the Board, to determine if the previous e-mail attributed to her was really from her. She says she did not recant her allegations to benefit Petitioner, but to help his wife and children.
i.       Enclosure (7) documents that a member of the Board’s staff contacted the HQMC Enlisted Promotion Section and was informed that had Petitioner’s selection by the CY 2003 Gunnery Sergeant Selection Board not been revoked, he would have received a date of rank and effective date of 1 November 2003.
CONCLUSION:

Upon review and consideration of all the evidence of record, and notwithstanding enclosure (4), the Board now finds an injustice warranting full relief. The Board concludes that the alleged misconduct reflected in the contested fitness report was the basis for revoking Petitioner’s selection for promotion. The alleged victim’s having recanted persuades the Board that the fitness report should be removed and the revocation of his selection for promotion set aside. The Board is unable to find that Petitioner’s fitness report would have been as unfavorable, or that his selection would have been revoked on the sole basis of disparate conduct of audits. In view of the above, the Board recommends the following corrective action:

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected by removing therefrom the following fitness report and related material:
          Period of Report
 Date of Report   Reporting Senior                  From     To
25 Sep 03        LtCol    USMC     25 Jul 03        23 Sep 03

 b.       That there be inserted in Petitioner’s naval record a memorandum in place of the removed report containing appropriate identifying data concerning the report; that the memorandum state that the report has been removed by order of the Secretary of the Navy in accordance with the provisions of federal law and may not be made available to selection boards and other reviewing authorities; and that such boards may not conjecture or draw any inference as to the nature of the report.









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c .       That the magnetic tape maintained by HQMC be corrected accordingly.
d.       That Petitioner’s naval record be corrected further by removing documentation of the revocation of his selection by the CY 2003 Gunnery Sergeant Selection Board, to include the
 Commandant of the Marine Corps 1450/5 MMPR-2 letter dated 14 November 2003, Subject:     Revocation of Selection from the CY 2003 Gunnery Sergeant Selection Board.

 d.       That Petitioner’s naval record be corrected further to show he was promoted to gunnery sergeant with a date of rank and effective date of 1 November 2003.
f.       That any material or entries relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
g.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.
4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.
          _


 ROBERT D. ZSALMAN        JONATHAN S. RUSKIN
Recorder         Acting Recorder

 5. The foregoing report of the Board is submitted for your review and action.





Reviewed and approved:


 Robert T. Call
 Assistant General Counsel
 Manpower and Reserve Affairs)










4
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103
                                                                                          IN REPLY REFER TO:
                                                                                                    1610
                                                                                                   MMER
                                                                                                   22 Dec 05



 MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    RECONSIDERATION IN THE CASE OF STAFF SERGEANT
                   USMC    

         Ref: (a) Ssgt xxx ltr dtd 28 Nov 05 w/attachments

          1.      The statements from Lieutenant Colonel xxxx and xxxxx and Ms. Xxxx furnished as attachments to reference (a), have been reviewed. It is the position of the PERB that the information contained in the three aforementioned statements are not sufficient to establish a factual basis to refute the accuracy of Staff Sergeant xxxx fitness report for the period of 20031106 to 20040223 (TR)
2. Lieutenant Colonel xxxx the reporting senior on the report, request the report be expunged from the petitioner’s official record because the report is based on allegations - that the petitioner sexually harassed and assaulted a female Marine under his charge. Ms xxxx provides an email retracting her allegations - that petitioner sexually harassed and assaulted her. Lieutenant Colonel xxxx statement also supports having the report expunged from the petitioner’s record because Ms. Xxxx as relieved from her duties for a fraternization incident that occurred shortly after her allegations against the petitioner.
3. While xxxx allegations of sexual harassment and assault contributed to the petitioner relief, the PERB does not believe that his relief was based solely on her allegations. During the preliminary inquiry, it was found that the petitioner used poor judgment and did not set the proper example for his Marines by performing audits in a consistent manner — he conducted a male junior Marine’s audit in a public place, while conducting a female junior Marine’s audit in the privacy of her residence. In the petitioner’s statement, he acknowledges that he conducted









Subj:    RECONSIDERATION IN THE CASE OF STAFF SERGEANT USMC
the audit in xxxx room and argues that the Marine Corps simply directs that the inspection be conducted, not where it will be conducted. The PERB still agrees with the reporting senior’s original statement - F.3. (Setting the Example) “MRO did not set the example for those under his charge by not maintaining high standards of military bearing and professionalism when dealing with junior Marines; and by not establishing and conducting a collateral duty inspection program that reviewed the Marines’ performance in an equal and consistent manner.”

 4. The preliminary inquiry also revealed that the petitioner maintained unduly familiar relationships with his subordinates. As indicated in reference (a), Ms. Xxxx accompanied the petitioner on a trip to Quaiaqual. During the trip, the petitioner states that xxxx became sick from consuming too much alcohol. While in the airport, he massaged head to relieve her discomfort. Because of incidents such as this, the investigating officer concluded that the petitioner had become unduly familiar with his subordinates. Subsequently, the reporting senior concluded the petitioner had used poor judgment and provided the following justification for his adverse marking in G.3 (Judgment) of the report - “MRO showed poor judgment by becoming too familiar with members of the detachment. This led to a break down in discipline and to inappropriate behavior among the detachment. MRO’s poor judgment also affected his personal credibility within the embassy community.”

5. The PERB declines to rehear Staff Sergeant and forwards the enclosure without action.


 Head, Performance
Evaluation Review Board
Personnel Management Division
By direction of the Commandant
of the Marine Corps

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